Lam (Migration)

This matter concerned an appeal by Mr Dieu Nien Lam against a decision of the Administrative Appeals Tribunal (the Tribunal) regarding his application for a Skilled Nominated (Permanent) visa (subclass 190). The primary dispute before the Tribunal was whether Mr Lam was a member of the family unit of the primary visa applicant, Ms Le Uyen My Du, as required by clause 190.311 of the Migration Regulations 1994.

The legal issue before the Tribunal was to determine if Mr Lam qualified as a "spouse" of Ms Du, as defined by section 5F of the Migration Act 1958. This definition requires that the couple be married under a marriage valid for the purposes of the Act, have a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship be genuine and continuing, and that they live together or do not live separately and apart on a permanent basis. The Tribunal was also required to consider the circumstances outlined in regulation 1.15A, which include the financial aspects, nature of the household, social aspects, and the nature of the couple's commitment to each other.

The Tribunal found that while Mr Lam had initially claimed to be Ms Du's de facto partner and provided evidence to support this, he subsequently provided a marriage certificate. The Tribunal then assessed his claim against the criteria for a spouse. Despite acknowledging the existence of a marriage certificate and some evidence of a shared household and financial aspects, the Tribunal expressed concerns regarding the limited duration of some evidence, discrepancies in documentation related to accommodation, and a lack of sufficient evidence regarding the social aspects of the relationship and the couple's commitment to each other, particularly in response to requests for statements from family and friends. However, the Tribunal ultimately concluded that the applicant was the spouse of the family head and that clause 190.311 was met.

Consequently, the Tribunal remitted the application for a Skilled Nominated (Permanent) visa for reconsideration, directing that Mr Lam met the criteria for clause 190.311.